Void For Vagueness

As summer turns into fall, the fall election will heat up considerably, and one of the biggest fights in Virginia this year, aside from the Senate race between George Allen and James Webb, will be over the referendum to add an Amendment banning same-sex marriage to Virginia’s Constitution. As I’ve announced before, I am opposed to this Amendment and plan to vote against it. One of the main reasons I’m opposed to it, as discussed in this Washington Post article, is that it is so broadly worded that it will have an impact on countless numbers of private contracts that have little to do with same-sex marriage.

Opponents of a constitutional amendment that would ban same-sex marriage in Virginia have been fighting the proposal with emotional pleas: “Don’t write discrimination into the state Bill of Rights,” goes one rallying cry. “We are your friends and your neighbors,” says another.

But as voters get closer to deciding whether to approve the amendment, opponents are using a more cerebral argument as well. The wording of the amendment is so vague that it might affect a broad range of Virginians by potentially voiding contracts between unwed heterosexual couples as well, they say.

“This amendment would affect unmarried couples whether they are gay or straight,” said Dyana Mason, executive director of Equality Virginia, the state’s largest gay rights organization. “One of our biggest fears is that these documents [such as contracts or wills] could be found unconstitutional if a third party tries to come in and stop their enforcement. Those same concerns apply to heterosexual couples who haven’t gotten married.”

Because the amendment reads in part that the Virginia Constitution should not recognize “a legal status for relationships of unmarried individuals,” opponents have consistently raised the specter that the amendment could interfere with any unmarried couple trying to make a health-care decision or pass along property ownership.

They said the measure as written also could threaten protective orders and additional safeguards for unmarried victims of domestic violence by barring legal recognition of unmarried household members.

Supporters of the proposed amendment say that it won’t go this far but, the text of the proposed amendment argues otherwise:

This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

Clearly, there is nothing about the text of the proposed amendment that limits itself to homosexual relationships. And, any “union, partnership, or other legal status” which heterosexual couples might use to simulate marriage would also be banned. What this would mean in practical effect is unclear, but, for me, it just underscores the fact that the government should not be involved in determining the validity of a marriage to begin with.

As I said, I intend to vote against this amendment in November and recommend other Virginians do the same.